At the end of his presidency, George Washington published a letter reflecting on the character of the nascent American republic. Later known as his Farewell Address, the letter famously warned against the dangers of domestic political parties and entangling foreign alliances. In addition, Washington extolled the foundations of a virtuous citizenry: “Of all the dispositions and habits, which lead to political prosperity,” he proclaimed, “Religion and morality are indispensable supports.”Footnote 1 Washington then offered an example: “Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?”Footnote 2
For his eighteenth-century audience, Washington's reference to the religious content of oaths was straightforward. Testimony under oath could be trusted because witnesses put their souls on the line. As William Blackstone explained in his Commentaries on the Laws of England, “The belief in a future state of rewards and punishments, the entertaining just ideas of moral attributes of the supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life … are the ground foundations of all judicial oaths.”Footnote 3 Consequently, prospective witnesses who did not believe in divine punishment were barred from testifying—or, in legal parlance, declared “incompetent” to testify.
Gradually at first, and then with growing speed, the theological underpinnings of oath taking eroded across the United States in the early nineteenth century. Fifty years after Washington's Farewell Address, the Virginia General Court ruled that the commonwealth's constitutional guarantee of religious freedom had displaced the outdated doctrine. “The progress of science and civilization, and the demands of commerce,” the court declared, “have led to a relaxation of the [common-law incompetency] rule.”Footnote 4 Ten years later, the North Carolina Supreme Court announced that barring witnesses because of their disbelief in hell was “wholly repugnant to the tolerant and enlightened spirit of our institutions and of the age in which we live.”Footnote 5 And these two states were late converts to what had become a nationwide repudiation of excluding witnesses because of their disbelief in hell. A rule thought essential a half-century earlier had become fundamentally at odds with legal orthodoxy.
The story of this transition illuminates and weaves together several important strands of nineteenth-century social and legal history. Judicial decisions are an obvious centerpiece in this narrative, but the most important catalysts of nineteenth-century reforms, it turns out, had little to do with particular courtroom disputes. Instead, evidence rules came into escalating conflict with American religion, especially after a liberal offshoot of Calvinism began rejecting the existence of hell. The development and rapid growth of this sect, known as Universalism, put tremendous strain on existing law. Not only did the common-law rule bar testimony from otherwise trustworthy witnesses to crimes, wills, and contracts; it imposed a civil disability on an entire group of Christians because of their interpretation of the testimony of Jesus.
By prevailing Founding Era standards, being unable to testify did not impede or punish Universalists’ exercise of religion, thus allowing the common-law rule to survive an initial volley of legal challenges. But Americans are renowned for waging political contests on constitutional terrain, reshaping constitutional meaning as they go. As Universalism grew, constitutional arguments against the restrictive competency rule evolved, and gained salience. In particular, critics began to promote evidentiary reform by invoking a different conception of free exercise: one that rejected any governmental discrimination on the basis of religion, irrespective of whether the government was actually impeding a person's exercise of religion. And this debate spilled well beyond the courtroom doors, commanding substantial attention in newspaper columns, law journals and treatises, religious magazines, legislative sessions, and state constitutional conventions. The shift away from religion-based oaths was therefore important to the development of a neutrality-based view of religious liberty and, more generally, an egalitarian conception of civil privileges.
The early nineteenth-century transformation in religion-based competency rules was one of the most prominent American legal developments of the era, but it is only vaguely appreciated in the existing literature. Historians have observed a lessened “confidence in the power of the oath to assure the legitimacy of verdicts,”Footnote 6 and that “the movement from oath-based to cross-examination-based theories of safeguard in the law of evidence” was premised on “a changed view of what promotes veracity.”Footnote 7 But these brief statements—clearly accurate descriptions of wide-ranging transitions in social and legal views—do not purport to explain how changes in religion-based competency rules occurred, nor do they account for the rich debates regarding religious liberty that played a central role in that history. Current scholarship also includes elemental errors suggesting a broad lack of understanding of the timing and mechanics of early nineteenth-century competency reforms.Footnote 8 And nearly all studies addressing this topic have focused on published appellate decisions, describing a doctrinal shift on the bench without illuminating the vibrant reform efforts taking place out of court.Footnote 9
In one of the few exceptions, Ronald Formisano and Stephen Pickering observe “an evolution toward the more inclusive standard” that allowed testimony from all those who believed in divine punishment, regardless of whether they believed that such punishment would occur after death.Footnote 10 Yet the primary thesis for Formisano and Pickering is the “retention of the traditional Christian tests of witness competency” in the United States, thus demonstrating “how ‘authority’ and ‘orthodoxy’ kept their hold on courtroom practice.”Footnote 11 They do not try to explain why competency rules shifted so dramatically in the first half of the nineteenth century.Footnote 12
Beyond its impact on religious liberty, the decline in religion-based competency rules also played a pivotal role in the history of American evidence law. Evidence law scholars have devoted significant attention both to the eighteenth century and to the middle of the nineteenth century, but have given little notice to the interlude.Footnote 13 Yet this largely unexplored period was seminal in the development of modern evidence law principles. Disputes over religion-based competency rules, it turns out, prompted the first widespread reassessment of the foundational premises of American evidence law.
The evidence law facet of this story raises difficult questions about motives and causes. As nineteenth-century reformers pushed to dismantle religion-based evidentiary rules, they presented a broader challenge to the prevailing system of rigid competency requirements. The notion that juries could be used as capable fact finders was a key facet of this agenda. But reformers often employed jury-based rhetoric only when their other arguments were failing. For the most part, then, the sweeping jury-based rhetoric of reformers was not matched by a strongly held devotion to wide-ranging evidence liberalization. By and large, the people who most wanted Universalists to be able to testify in court apparently lacked the political will to pursue a broader agenda of legal reform.
Nonetheless, the attacks made on religion-based competency rules in the second quarter of the nineteenth century seem to have affected, or at least reflected, how many Americans thought about evidence law. Subsequent discussions about whether atheists should be allowed to testify, for example, are replete with the same rhetorical strategy, relying heavily on the capacity of juries to uncover the truth. Similar language re-emerged in the 1850s and 1860s when a combination of political forces led to an effort to dismantle both Southern competency rules preventing blacks from testifying and Northern competency rules barring the testimony of witnesses (including parties) who had personal interests in the outcomes of cases. The history of the demise of religion-based competency rules thus illuminates not only a lasting shift in views about religious freedom but also the emergence of a broader, and repeatedly successful, rhetorical strategy of evidentiary reform.
I. Common Law
English law has a long history of reliance on oaths. Following the demise of trials by ordeal, judges turned to juries to determine guilt or innocence in criminal trials.Footnote 14 Originally, juries seem to have made decisions mostly using prior knowledge, but by the early fourteenth century, witnesses were more regularly being called into court.Footnote 15 Each witness and juror swore an oath, providing putative assurance that witnesses would speak the truth and that jurors would faithfully evaluate the evidence. Not everyone, however, was allowed to be a witness. Plaintiffs, defendants, financially interested parties, criminals, and “infidels” were among the many classes declared “incompetent” to testify.Footnote 16
By the eighteenth century, witness-competency rules served a range of functions in the English legal system. Perhaps most importantly, strict competency requirements reduced the amount of conflicting testimony, helping to maintain the sanctity of oaths and, in turn, the legitimacy of the judicial system. Because oaths were meant to ensure the veracity of evidence, routine testimonial conflicts would have been deeply problematic, exposing the extent to which human judgment rather than abstract truth determined outcomes.Footnote 17 Additionally, as James Whitman argues, the common law responded to concerns that jurors put their own souls at risk.Footnote 18 Many interpreted the Biblical injunction “Judge not, that ye be not judged” as a warning against unjust condemnation.Footnote 19 Given this concern, jurors faced with conflicting evidence were more likely to find defendants not guilty. Strict competency rules therefore helped judicial elites avoid this potential barrier to obtaining guilty verdicts.Footnote 20
In the early seventeenth century, the common law prohibited non-Christian “infidels” from testifying.Footnote 21 The rule apparently existed for two reasons, neither of which was immediately aimed at ensuring the accuracy of testimony. First, England did not tolerate religious dissent, and evidence rules reflected this hostile attitude toward other faiths, including Judaism and Roman Catholicism.Footnote 22 Second, the particular form of English oath taking was explicitly Christian, with each witness swearing while he “toucheth with his hand some part of the holy Scripture.”Footnote 23 Accordingly, non-Christians could not swear an English oath.
Once Judaism was lawful in England, however, the common law slowly adapted. At first, the rigidity of perjury rules (which required proof that the witness had sworn on the Bible) impeded Jewish oath taking.Footnote 24 In cases of necessity, however, English courts began to accept Jewish testimony. As Lord Chief Justice Matthew Hale explained, “altho the regular oath, as it is allowd by the laws of England, is tactis sacrosanctis Dei evangeliis, which supposeth a man to be a christian, yet in cases of necessity, as in forein contracts between merchant and merchant, which are many times transacted by Jewish brokers, the testimony of a Jew tacto libro legis Mosaic æ is not to be rejected, and is used, as I have been informed, among all nations.”Footnote 25
Under Hale's interpretation, the English oath remained a conventionally Christian instrument, but it was available to others by the necessity of foreign trade. This view was expanded upon in the 1744–45 English chancery decision of Omichund v. Barker.Footnote 26 Lingering ambiguities in the Omichund opinions later spurred significant debate in American courts, and the case therefore deserves close attention.
A. Omichund v. Barker
The dispute in Omichund began when Hugh Barker,Footnote 27 an employee of the East India Company and territorial governor, refused to pay a debt of more than 60,000 rupeesFootnote 28 to an extraordinarily wealthy local merchant named Amirchand (typically listed as Omichund or Omychund in contemporary British records).Footnote 29 When Amirchand filed suit in Calcutta, Barker quickly absconded on a ship for Europe but died on the journey.
Seeking recovery of the debt, Amirchand's lawyers in England sued Barker's estate in chancery court. Barker's executor then filed a cross-claim requiring a sworn answer. Because Amirchand was not a Christian and therefore could not swear on the Bible, “a Commission went to take his Answer in that Manner in which he was able to give it.”Footnote 30 While in India, the commission also took depositions from several Christian and Hindu witnesses.
When the commission returned to England, Amirchand's lawyers sought to file the answer and to introduce the Hindu witnesses’ depositions as evidence, but the attorney for Barker's estate, John Tracy Atkyns, objected to the competency of these deponents on account of their religious beliefs. Atkyns cited Coke for the proposition that only Christians could swear an oath.Footnote 31 Atkyns insisted that the “ignorant, … absurd and ridiculous” religious principles of the Hindu witnesses were insufficient for them to comprehend the sanctity of an oath.Footnote 32
Because of Amirchand's financial and political power and the commercial importance of allowing non-Christians—particularly Jewish merchants—to testify in English courts, the case garnered substantial attention. When the dispute reached the High Court of Chancery, Lord Chancellor Philip York, First Earl of Hardwicke, asked for the assistance of three of the country's most eminent jurists: the Lord Chief Justice of England and Wales, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron of the Exchequer.Footnote 33 And among the lawyers arguing on behalf of Amirchand were two of England's leading jurists, Attorney General Dudley Ryder and Solicitor General William Murray, soon to become the famous Earl of Mansfield.Footnote 34
In his argument, Ryder acknowledged Coke's statement about oaths but claimed that the exigencies of foreign commerce necessitated allowing Hindu testimony: “[T]rade requires it, policy requires it, and in dealings of this kind it is of infinite consequence, there should not be a failure of justice.”Footnote 35 Murray articulated an even more liberal rule of evidence. Looking to British history and the experience of other countries, including India, Murray argued that an “oath must be always understood according to the belief of the person who takes it.”Footnote 36 Cognizant of the commercial consequences of excluding Hindu testimony, Murray continued: “Heathens bought the goods, heathens sent them, heathens knew the price, heathens kept the account. Would it do honour then to the Christian religion, to say, that you cannot swear according to our oath, and therefore you shall not be sworn at all? What must the heathen courts think of our proceedings? Will it not destroy all faith and confidence between the contracting parties?”Footnote 37 Hindus believed in a god, Murray stated, “though they may have subordinate deities, as [do] the papists who worship saints.”Footnote 38
According to custom, the judges gave oral seriatim opinions, with each judge speaking for himself. Lord Chief Baron Thomas Parker argued that it was necessary to admit the Hindu deponents’ statements. “Upon the whole,” he declared, “not to admit these witnesses would be destructive of trade, and subversive of justice, and attended with innumerable inconveniences.”Footnote 39 Lord Chief Justice William Lee and Lord Chancellor Hardwicke concurred. Lee, drawing on the natural-law current of English jurisprudence, stated that “rules of evidence are to be considered as artificial rules, framed by men for convenience in courts of justice, and founded upon good reason: But one rule can never vary, viz. the eternal rule of natural justice.”Footnote 40 Hardwicke agreed that the “one general rule of evidence” was to admit “the best [evidence] that the nature of the case will admit.”Footnote 41 Differences in religious views were no barrier. “All that is necessary to an oath,” Hardwicke wrote, “is an appeal to the Supreme Being, as thinking him the rewarder of truth, and avenger of falshood.”Footnote 42
The opinion of Lord Chief Justice John Willes subsequently received the most attention, primarily because later jurists disputed what Willes had said. According to the report of defense attorney John Tracy Atkyns, Willes stated: “I am of opinion that infidels who believe a God, and future rewards and punishments in the other world, may be witnesses.”Footnote 43 As interpreted in later decisions, the requirement of belief in future rewards and punishments meant that individuals who did not believe in heaven and hell could not swear an oath.
In 1799, however, English lawyer Charles Durnford published a lengthier—and substantively different—version of the opinion, apparently based on a manuscript in Willes’s papers.Footnote 44 According to Durnford, Willes had written that a witness may be admitted if he “believes a God and that he will reward and punish him in this world, but does not believe a future state.”Footnote 45 But, Willes apparently clarified, “it must be left to the jury what credit must be given to these infidel witnesses. For I do not think that the same credit ought to be given either by a court or a jury to an infidel witness as to a Christian, who is under much stronger obligations to swear nothing but the truth.”Footnote 46
Comparisons of the various Omichund reports indicates that Willes, in his oral delivery from the bench, deviated at times from the manuscript version published by Durnford.Footnote 47 But an unpublished manuscript in the Lincoln's Inn Library seems to confirm the Durnford report's position: that Willes declared all theists as capable of swearing an oath, even if judges sometimes barred their testimony because it was not the “best evidence” available.Footnote 48 Perhaps he was worried that Jewish witnesses might be categorically excluded if the law required belief in rewards and punishments after death.Footnote 49 More importantly, however, the decisions of Willes and his colleagues reflect a transformation of English evidence law from rules based on a person's status to ones based on the perceived evidentiary value of the person's testimony.Footnote 50
B. American Reception of the Common Law
Oath requirements in the United States initially followed the rule espoused in Atkyns’ report, thus confining testimony to those who believed in heaven and hell.Footnote 51 In perhaps the most influential American opinion, the Connecticut Supreme Court of Errors declared in its 1809 decision in Curtiss v. Strong:Footnote 52 “Every person who does not believe in the obligation of an oath, and a future state of rewards and punishments, or any accountability after death for his conduct, is by law excluded from being a witness; for to such a person the law presumes no credit is to be given.”Footnote 53 At least as a statement of the “law on the books,” this view became axiomatic. Over and over again, Americans observed that oath takers must believe in heaven and hell.Footnote 54
Through a cynical lens, the American reception of the common-law rule might appear as a continuation of the status-based religious discrimination of an earlier time, when Jews and Catholics were barred from testifying because of religious intolerance.Footnote 55 English and American commentators in the early nineteenth century, however, took a far more ecumenical approach. In his 1804 evidence treatise, for example, Thomas Peake explained that the only permissible religious inquiry was whether a witness “believed the sanction of an oath,” meaning “the being of a Deity, and a future state of rewards and punishments.”Footnote 56 Broader religious exclusions, Peake wrote, arose “when a gloomy superstition had obscured all liberal sentiment.”Footnote 57 Connecticut jurist Zephaniah Swift agreed. The solemnity of an oath, he noted, “aris[es] from a belief in the existence of a God, and a future state of rewards and punishments.”Footnote 58 But Swift denounced broader religion-based exclusions as founded on “illiberal sentiments” that were “entertained at an early period, when there was more superstition than true religion.”Footnote 59
Rather than relying on sectarian hostility, Americans in the early nineteenth century justified the common-law rule as being essential to discovering truth, which had become the overwhelming focus of eighteenth-century evidence commentaries.Footnote 60 “You can impose no obligation to tell the truth, on the man who fears not a God, as an avenger of perjury,” one writer remarked. “The tardy and evasive vengeance attached by human laws to perjury, is all that he cares to avoid,” the author continued, “and his asseverations … will be as easily swayed by any gust of passion or preponderance of interest, as is the weathercock by the passing breeze.”Footnote 61 Early on, Americans seem to have broadly accepted the necessity of religion-based oaths, particularly given the difficulty of proving perjury under an evidence regime that strenuously sought to avoid evidentiary conflicts.Footnote 62 As Sally Gordon explains, “Failure to protect the religious power of oaths would undermine the rule of law altogether, [George] Washington, [James] Kent and others predicted, plunging the nation into self-destructive chaos.”Footnote 63
But how did courts know which witnesses had the requisite religious beliefs? “It would seem to be incongruous to admit a man to his oath,” the Curtiss court observed, “for the purpose of learning from him whether he had the necessary qualifications to be sworn.”Footnote 64 Consequently, American courts limited their review to hearsay evidence; that is, accounts of what prospective witnesses had said to others about their religious views.Footnote 65 Another pressing concern was religious liberty. “A man's opinions are matters between himself and his God, so long as he does not disclose them,” Zephaniah Swift explained, “and it is wholly inconsistent with the rights of conscience, to compel him to do it.”Footnote 66
To modern sensibilities, discriminating against prospective witnesses based on their religious views would seem to pose at least as great a threat to religious liberty as asking witnesses about those beliefs, but this was not so in the early nineteenth century. Although attentive to the relationship between evidence rules and religious liberty, Swift apparently did not perceive any objection to the exclusion of witnesses based on their beliefs. Similarly, none of the appellate counsel in Curtiss—all well-known lawyers and former members of the Connecticut Supreme Court of Errors—suggested that the restrictive common-law rule might violate a witness's civil rights. Understanding why requires a closer look at contemporary understandings of religious freedom.
C. Equality and Religious Freedom
Religious liberty at the founding was not a one-dimensional concept. Rather, religious freedom encompassed a collection of discrete—albeit conceptually related—rights, privileges, and immunities. To use an analogy familiar to students of property law, the eighteenth-century concept of religious liberty was like a “bundle of sticks”: rules that were logically separable, allowing constitutional protection for religious freedom to vary in significant ways from state to state.
Across the board, the heart of every state's protection for religious liberty was a guarantee of the natural and inalienable freedom of conscience and worship. Delaware's 1776 declaration of rights was typical, announcing that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their consciences and understandings.”Footnote 67 This natural-rights formulation is revealing. Upon entering society, the inalienable right to exercise religion remained in force, subject to a bar against unjustly harming others.Footnote 68 All individuals thus had an equal and conditional “right” to believe and practice their faith without interference.Footnote 69
Unlike our widely accepted understanding today, however, free-exercise rights in the Early Republic generally prohibited only direct interference with private liberty, not indirect burdens created by the withdrawal of civil privileges. This explains why, for example, states could guarantee freedom of conscience while simultaneously imposing religious tests for officeholders.Footnote 70 A religious test, Justice Samuel Wilde of Massachusetts explained in 1821, “does not interfere with the rights of conscience.—No person has any conscience about becoming a Legislator. He is not obliged to accept of office, and he has no right to claim it.”Footnote 71 According to this view, religious discrimination was permitted as long as individuals were free to practice their religion without being compelled to violate their conscience.Footnote 72
Beyond the core protection for free exercise, the bundle of rights, privileges, and immunities often known collectively as “religious liberty” varied considerably among states. Some constitutions authorized qualified religious establishments,Footnote 73 whereas others banned them.Footnote 74 In states that levied assessments used for building churches or supporting ministers, state constitutions often exempted religious dissenters.Footnote 75 And, most relevant here, many states guaranteed some form of civil equality among sects, beyond the equality of their inalienable free-exercise rights.
Equality provisions varied among states. New Jersey's 1776 Constitution, for example, guaranteed that “no Protestant Inhabitant of this Colony shall be denied the Enjoyment of any civil Right merely on Account of his religious principles.”Footnote 76 Delaware extended this protection to “all persons professing the Christian religion,”Footnote 77 whereas Virginia magnanimously declared in its 1786 bill for religious freedom that the religious views of individuals “shall in nowise diminish, enlarge, or affect their civil capacities.”Footnote 78 But many states did not prohibit discrimination in civil rights and privileges on account of religious belief. Massachusetts and New Hampshire provided only that Christians would be “equally under the protection of the law,”Footnote 79 a phrasing that, as Philip Hamburger has explained, “permitted inequalities in rights not existing in the state of nature.”Footnote 80 Because the imagined “state of nature” lacked courts, testifying was a “civil” rather than “natural” right.
The Founding Era distinction between natural free-exercise rights and positive-law guarantees of civil nondiscrimination came to the fore in 1820, when New York's highest court confronted a novel challenge to religion-based competency rules. In Jackson v. Gridley,Footnote 81 the defendant claimed that excluding a witness because of his faith offended the state constitution's free-exercise clause. The witness reportedly had denied any belief in God and punishment after death, although he later claimed that “he had formerly embraced the principles of Universalists, and rather believed it was right.”Footnote 82 While acknowledging that witnesses who did not believe in hell were incompetent at common law, the defense lawyer wanted to introduce the witness's own testimony regarding his recently converted beliefs. Opposing counsel objected, arguing that “the Court should require the strongest and best evidence of the witness's sincere recantation of his abominable creed.”Footnote 83
Writing for the court, Chief Justice Ambrose Spencer ruled that the contested witness should not have been admitted to testify. He cited Chief Justice Willes's decision in Omichund without mentioning ambiguities in the various English reports.Footnote 84 Spencer's opinion, however, includes a revealing passage about religious freedom:
Religion is a subject on which every man has a right to think according to the dictates of his understanding. It is a solemn concern between his conscience and his God, with which no human tribunal has a right to meddle. But in the development of facts, and the ascertainment of truth, human tribunals have a right to interfere. They are bound to see that no man's rights are impaired or taken away, but through the medium of testimony entitled to belief; and no testimony is entitled to credit, unless delivered under the solemnity of an oath, which comes home to the conscience of the witness, and will create a tie arising from his belief that false swearing would expose him to punishment in the life to come. On this great principle rest all our institutions, and especially the distribution of justice between man and man.Footnote 85
The constitutional concern for Spencer, it bears emphasis, was the inquiry into a person's religious beliefs, not governmental discrimination based on those views. A witness's religious faith was “a solemn concern between his conscience and his God,” shielding him against direct questioning.Footnote 86 But once those religious views were known, religion-based exclusions did not infringe on New York's constitutional guarantee of free exercise. Simply put, prospective witnesses were free to practice their religion regardless of their competency to testify.
By contrast, conventional oath requirements did conflict with free-exercise principles in a way that was unrelated to disbelief in God or hell. Witnesses, jurors, and public officials were ordinarily required to swear oaths, but Quakers, along with a few other Protestant sects, refused to take public oaths based on a literal interpretation of Christ's injunction, “Swear not at all.”Footnote 87 By the end of the eighteenth century, nearly every American state had passed statutes or constitutional provisions allowing Quakers, and sometimes other religious objectors, to affirm in at least some cases.Footnote 88 But affirmations were not a generally available alternative to oath taking. Rather, affirmations were available only to members of denominations whose religious tenets prohibited swearing.Footnote 89 Prospective witnesses who did not believe in God or hell were not allowed to affirm in place of swearing.Footnote 90 In short, nonbelievers in God or hell were unaccommodated in all types of public oath taking.Footnote 91
II. Universalism
Among Christians, belief in future rewards and punishments was widespread and uncontroversial throughout most of the eighteenth century. Not surprisingly, therefore, very few reported cases in the years immediately following Curtiss v. Strong involved challenges to the restrictive common-law rule.Footnote 92 But theological developments soon undermined this stability.
Around the time of the American Revolution, a group of liberal theologians centered in New England began rethinking Christ's redemption of human sin. Building on Calvinism, which one scholar has noted “still dominated American theology in the eighteenth century,”Footnote 93 several Massachusetts ministers began teaching that Christ's death had ensured salvation to all humanity.Footnote 94 Based on their belief in universal salvation, these religious reformers called themselves Universalists.
Initially, Universalists retained belief that God would punish sin after death, although only temporarily.Footnote 95 But church doctrine continued to evolve in ways that created an escalating conflict with common-law competency rules. In the first edition of his Treatise of Atonement (1805), Universalist minister Hosea Ballou argued that God's love was unchanging, and that, therefore, atonement was designed for the benefit of the individual, without being required for divine salvation.Footnote 96 By the third edition of his Treatise in 1812, Ballou expressed doubt in the existence of any future punishment, and shortly thereafter he openly denied punishment after death.Footnote 97
Ballou's teachings were controversial, even among fellow Universalists.Footnote 98 Denying all forms of punishment after death, many believed, would lead to the proliferation of sin. As Seth Cowell wrote in 1821: “If wicked men are made to believe … that salvation is infallibly certain, they will have no motive sufficiently powerful to induce them to oppose the corrupt propensities of their nature.”Footnote 99 Some Universalists shared similar concerns about discouraging good behavior, and many moderated their views, although remaining committed to the idea of universal salvation. By the 1850s, Ann Bressler writes, “most Universalists were rejecting an ultra-Universalist position in favor of a belief in some form of limited future punishment.”Footnote 100 Ballou's teachings, however, drew thousands of followers. And although Universalism represented the theological extreme, other Christian sects also rejected or de-emphasized the importance of eternal damnation.Footnote 101
These changes had a transformative effect on oath taking. In the late eighteenth century, oaths were understood as implicit acknowledgments that forsaken sinners went to hell, creating a strong presumption in favor of trusting sworn testimony. Theological shifts, however, weakened the religious underpinnings of oaths in two ways. First, the declining importance of hell in American religion lessened the perceived effectiveness of oaths as a deterrent against lying.Footnote 102 Second, the advent of Universalism created a significant conflict between mainstream religious views and existing competency rules. The common-law rule had not changed, but neither had it previously excluded an entire sect of faithful Christians.Footnote 103
A. Ignoring the Common Law
Confronted with the collision between Universalist faith and competency rules, nineteenth-century judges occasionally ignored or overlooked the common law. In the Massachusetts case of Hunscom v. Hunscom (1818),Footnote 104 for example, the short report of the decision states, in full:
This was a libel for divorce a vinculo. On the trial a witness being offered to prove the adultery, Wilson, for the respondent, objected to his being sworn; and founded his objection to the competency of the witness, upon his professed disbelief of a future state of existence, and offered to prove his repeated declarations of such disbelief. But the Court admitted him to be sworn, and said the objection went only to his credibility.Footnote 105
This brief, and frequently misunderstood, report seems to be the earliest published account of someone who lacked a belief in future punishment being held admissible as a witness.Footnote 106
Scholars often misinterpret Hunscom as a precedential decision that atheists could testify.Footnote 107 The decision, however, had nothing to do with atheists, as contemporaries widely recognized.Footnote 108 Hunscom’s supposed precedential status is also questionable. The evidentiary decision was a trial-level ruling, issued when a panel of the Supreme Judicial Court was riding circuit in the district of Maine, and the judges did not control which decisions were reported. Indeed, observers sometimes viewed the Hunscom report with a skeptical eye.Footnote 109 Nonetheless, its publication seems to have influenced Massachusetts law.Footnote 110
Universalist competency to testify soon followed in other states. The Illinois Supreme Court permitted the introduction of a Universalist's testimony in 1822, although its reasoning was no more elaborate than the de minimis treatment in Hunscom.Footnote 111 The same year, a county court in Maryland allowed a Universalist to testify.Footnote 112 The court admitted the witness after learning that he “always appealed to [the scriptures] as the bulwark of his faith.”Footnote 113 Compared with other published decisions, these rulings were scattered and isolated. But early nineteenth-century reporting was limited, so the decisions could be the tip of a broader, unrecorded shift in judicial behavior. At a minimum, they highlight the agency that judges sometimes exhibited in eschewing the usual religious prerequisites for oath taking.
Judges also used ambiguities in Universalist doctrine to avoid strict adherence to competency rules. Having decided Jackson v. Gridley in 1820, the New York Supreme Court re-examined witness exclusion a few years later in Butts v. Swartwood.Footnote 114 A witness had apparently announced “that he did not believe in the bible more than in any other history … but he at the same time declared that he believed in the Deity, and in the doctrine of universal salvation.”Footnote 115 Without conclusive evidence of disqualifying beliefs, the trial judge allowed him to testify. The state's highest court affirmed, finding “no evidence in this case, to shew what precise creed is embraced in the doctrine of universal salvation.” The court noted that not “all those who hold that doctrine… deny all future punishment. Some only deny the duration of those punishments to be eternal.”Footnote 116 Indeed, there was a lively debate within Universalist circles as to whether God temporarily punished sin.Footnote 117
B. Reinterpreting the Common Law
In 1824, only a year after Butts v. Swartwood, a New York lower court issued the first reported decision directly rejecting the authority of Atkyns's report of Omichund. In a criminal trial for perjury, the prosecutor, Raymond Williams, took the stand as a government witness. The defendant objected to Williams's competency and offered a witness who “testified that he had frequently heard the prosecutor declare, that he did not believe in any future punishment, after this life.”Footnote 118 Judge Reuben Hyde Walworth—who 4 years later became chancellor, one of New York's highest judicial officers—held that Williams should be allowed to testify:
If he does not believe in the existence of a God; or if he believes in no punishment except by human laws, no obligation or tie can have any binding force upon his conscience. But if he believes that he will be punished by his God even in this world, if he swears falsely, there is a binding tie upon the conscience of the witness and he must be sworn; and the strength or weakness of that tie is only proper to be taken into consideration in deciding upon the degree of credit which is to be given to his testimony.Footnote 119
The New York Supreme Court's earlier decision in Jackson v. Gridley had gone awry, Walworth argued, based on “the misreporting of the opinion of Chief Justice Willes as delivered in the case of Omichund v. Barker.”Footnote 120
In 1827, a lower court in western South Carolina adopted and expanded upon Judge Walworth's reasoning. Drawing on nearly all available sources, Chancellor Henry William DeSaussure found the common law to be indeterminate based on the conflicting reports of Omichund and the lack of a majority opinion in the earlier South Carolina decision of State v. Petty.Footnote 121 DeSaussure therefore returned to first principles. “It is clear that the object of all evidence is the attainment of truth,” he wrote, also noting that, “in modern times, the disposition of the Courts of Justice has been to narrow the ground of incompetency, and to leave objections to operate on the credit of the witnesses.”Footnote 122 Because the contested witness believed in divine punishment, DeSaussure stated, “[i]t does appear to me that this is a sufficient sanction to guarantee the attainment of truth from a witness.”Footnote 123 But “those who deny wholly the existence of a God or Providence, or punishments in this or another world,” DeSaussure emphasized, should not be admitted.Footnote 124
The more pathbreaking aspect of DeSaussure's opinion, however, was his assessment of religious freedom. South Carolina's constitution, like New York's, barred only “discrimination or preference” in the “[t]he free exercise and enjoyment of religious profession and worship”; it did not expressly prohibit legal disabilities imposed on account of religious views.Footnote 125 Opposing counsel therefore argued that “the inquiry into [the witness's] religious opinions did not contravene … the Constitution [because] he might still enjoy his religious profession, and worship notwithstanding such exclusion, and that the exclusion would merely operate on his civil and not his religious rights.”Footnote 126 DeSaussure eloquently replied:
If a man's religious opinions are made a ground to exclude him from the enjoyment of civil rights, then he does not enjoy the freedom of his religious profession and worship. His exclusion from being a witness in Courts of Justice is a serious injury to him; it is also degrading to him and others who think with him…. It would seem to me to be a mockery to say to men, you may enjoy the freedom of your religious professions and worship; but if you differ from us in certain dogmas and points of belief, you shall be disqualified and deprived of the rights of a citizen, to which you would be entitled but for those differences of religious opinion.Footnote 127
Drawing on a sense of social progress, DeSaussure concluded: “I feel strength in the view of the case by the growing liberality of the age, in the respect shewn to the tenderness of conscience.”Footnote 128 The decision was appealed to the South Carolina Court of Appeals and affirmed without comment.Footnote 129
DeSaussure's opinion was pioneering as a judicial pronouncement, but similar expositions of religious freedom were increasingly common in the public sphere. For decades, many Americans opposed religious tests for officeholders on the basis that burdensome civil incapacities prevented the practice of religion from being truly “free.”Footnote 130 And politicians were beginning to make similar arguments against the common-law competency rule. At the 1821 state constitutional convention in Albany, following shortly after the New York Supreme Court's decision in Jackson v. Gridley, state legislator Erastus Root proposed that courts should not “exclude any witness on account of his religious faith.”Footnote 131 Root instead “wished for freedom of conscience,” disallowing witnesses from being “interrogated and catechised as to their articles of faith.”Footnote 132 Root's idea, however, garnered almost no support.Footnote 133 It is worth noting that much of the public commentary following Gridley defended the ruling, including Spencer's reliance on the Atkyns report in Omichund.Footnote 134
Following the 1821 convention, citizens in several New York localities petitioned for legislative change. An assembly in Whitesborough, for example, adopted resolutions claiming that the Gridley decision had unconstitutionally endorsed sectarian doctrine.Footnote 135 The citizens proposed that “the right of testifying in courts of justice is one of the most important civil rights of the citizens of this state; and that no citizen can be deprived of this right, unless by the law of the land on the judgment of his peers.”Footnote 136 At least one New York legislator agreed. Thomas Herttell, a legislative champion of many liberal causes, wrote in his 156 page attack on Gridley that the judges “have discriminated between the religious tenets of different individuals of the community, and imposed disabilities on those whose opinions they have undertaken to proscribe by law.”Footnote 137 Notably, Herttell did not argue that juries should be allowed to assess a witness's credibility based on his religious views. The pursuit of truth, Herttell argued, “was no justification for the court, nor would it be for any jury to intermeddle in a concern in which the court admitted … that ‘no human tribunal had a right to interfere.’”Footnote 138
C. Defending Incompetency
As the 1820s progressed, reports of testimonial exclusions became increasingly common, and notably more controversial. At the fore of these developments was a trio of rulings in Rhode Island, Connecticut, and New York. These three decisions, along with the debates that erupted in their aftermaths, expose both the escalating importance of religion-based competency rules as a salient public issue and the ways that reformers were adapting their arguments.
In 1827, the Circuit Court of the United States for the First Circuit, sitting as a trial court in Providence, Rhode Island, considered an objection to two plaintiff's witnesses—father and son Joseph and John Richardson—on the basis of religious defect. A defense witness testified “that he knew the [Richardsons] well, that he had often heard the son say, that he did not believe in the existence of a God, or of a future state,”Footnote 139 and that the father had declared “that he did not believe in a future state; that he had read Tom Paine's works; and did not know, whether he (the father) believed any thing.” Supreme Court Justice Joseph Story—who was riding circuit—announced the court's ruling: “We think these persons are not competent witnesses. Persons who do not believe in the existence of a God, or of a future state, or who have no religious belief, are not entitled to be sworn as witnesses.”Footnote 140 In light of existing authority, Story's decision was unsurprising.
One year later in Atwood v. Welton,Footnote 141 the Supreme Court of Errors of Connecticut held a Universalist incompetent to testify in the most erudite opinion of its kind. Canvassing most of the appellate case law, Justice David Daggett—who had argued as counsel in Curtiss v. Strong—mentioned the ambiguity in the Omichund opinions but stated confidence in Atkyns's report.Footnote 142 The rule requiring belief in future rewards and punishments, he asserted on behalf of the majority, “is the rule of common law; and there is no adjudged case, nor hardly a dictum in the English books against it.”Footnote 143
Daggett acknowledged that “a man ought not to be questioned respecting his religious opinions, as the enquiry may subject him to reproach, if he should confess his infidelity.”Footnote 144 Admitting prior out-of-court statements, however, obviated religious-liberty concerns. “[I]t is not easy to see how there is any interference with religious faith,” he wrote, “in deciding a person professing certain opinions to be unfit to be sworn.”Footnote 145 Excluding a witness from testifying, he stated, “has no possible bearing” on his belief or worship. Restating and responding to the rights-based argument, Daggett continued: “But his rights are infringed, or he is disturbed in the exercise and enjoyment of them. What right? Doubtless the right of giving testimony. This is a new right, privilege or franchise, unknown, and therefore, undefined, and I may add, unheard of before, by any lawyer or judge… . The party [in the suit] may be injured … but it is incomprehensible how the proposed witnesses can be, in any way affected.”Footnote 146 Anticipating the logical conclusion of the rights-based argument, Daggett asserted that “if the witness who denies all future punishment, cannot be excluded, without a violation of the constitution, neither can the Atheist.”Footnote 147
One of the many interesting features of Atwood is the creative theological arguments made on both sides. Responding to the plaintiff's contention that the common-law rule would exclude a Calvinist who was “fully assured of his own election to eternal life,” Daggett embraced the point, stating that “if it should be proved respecting any person offered as a witness, that he believed his own happiness secure at death regardless of his conduct in this life, he ought not to be sworn.”Footnote 148 But Daggett did not directly respond to the plaintiff's argument that courts always accepted testimony from Jews, “whose ideas of a future state are known to be very indistinct and loose.”Footnote 149 Aside from this remark, the potential tension between Jewish theology and the strict common-law rule played almost no role in the legal and political debates about witness competency.Footnote 150 Advocates of reform more frequently mentioned the Catholic belief in absolution, which they argued exposed the hypocrisy of religious-based tests. “What credit will be given, by a Protestant,” Justice John Thompson Peters asked in dissent in Atwood, “to the testimony of a Catholic with an indulgence in his pocket?”Footnote 151
Another prominent witness-competency controversy arose in the late 1820s in New York. The episode stemmed from the 1826 kidnapping and apparent murder of William Morgan by a group of Masons in retaliation for his plan to reveal secrets of the Masonic order. At the August 1828 trial of several of Morgan's alleged captors, the prosecution—led by Ambrose Spencer's son, John C. Spencer—planned to rely heavily on the testimony of Edward Giddins (often reported as Giddings),Footnote 152 but the defense produced witnesses who said that Giddins “believed that conscience alone controlled the actions of honest men, and denied the existence of any being to whom man will be every accountable for his conduct.”Footnote 153 Consequently, Judge Nathaniel Howell barred Giddins from testifying, undercutting several of the prosecutions.Footnote 154 Journalist William Leete Stone later reported to John Quincy Adams, “The rejection of Giddings as a witness, was a sore disappointment to the people. It was known … that his testimony, if received, would be of the highest importance.”Footnote 155
Tellingly, reactions to the trio of decisions in the late 1820s—Wakefield v. Ross, Atwood v. Welton, and the William Morgan ruling—were far more hostile than the responses to Jackson v. Gridley less than a decade earlier. According to the Boston Patriot: “The decision of the Supreme Court of Errors of Connecticut … has called forth remarks of disapprobation from almost every quarter…. Good will come out of this decision, however, as it will probably lead to the passage of a law to prevent the judiciary from acting as inquisitors upon men's religious belief, when summoned as witnesses.”Footnote 156 Indeed, pressure for legislative change was mounting.
Reform efforts within and across state lines seem to have been mostly uncoordinated.Footnote 157 Universalist magazines were the only steady, far-reaching voice in favor of reform, although newspapers and law magazines gave the issue considerable cross-state attention as well. This fragmented effort, however, should not distract from well-defined trends in public debate and lawmaking. Published cases, treatises, editorials, and legislative debates all facilitated, and provide evidence of, fairly consistent patterns in reformist rhetoric and goals.
Yet again, religious freedom was the most prevalent argument against the common-law competency rule. That rule, one editorial in Rhode Island stated, “seems to be requiring of the witness that he shall believe in certain prescribed doctrines, in other words a direct attempt to set up a religious test.”Footnote 158 Countless others made the same point.Footnote 159
Although this argument easily resonates with modern readers, it is important to recognize its contestability at the time.Footnote 160 Legal equality had long been one of many facets of religious freedom that could supplement the natural right of free exercise, but reformers in the 1820s and 1830s were, perhaps unwittingly, collapsing these concepts into an undifferentiated whole. To put the point another way, the struggle over competency rules was pulling the right of free exercise away from its originally more limited focus on liberty. Reformers were equating the denial of legal privileges with the deprivation of natural rights.
In states that recognized civil equality, much of the debate focused on whether testifying was a civil right. Judicial decisions and early commentary were generally hostile to the idea. In 1828, for example, Massachusetts legislator and future United States Attorney General Caleb Cushing wrote:
[T]he phrase ‘civil capacities’ in the [religious freedom] act, has no application … to the qualifications of a witness. These qualifications are a matter of adversary right. Every party to a cause has a right to demand a trial by the established rules of evidence… . The court cannot, for the purpose of protecting the reputation or saving the feelings of the witness, deny to the defendant the exercise of this right.Footnote 161
For Cushing, the only rights at stake were those of the competing parties, not prospective witnesses, and the rules of evidence defined those rights. A review in the Christian Spectator agreed, noting that “[a] man can be wronged only by being deprived on some right. But the right to offer testimony in a given case, belongs to the contending parties, and to no one else.” Witnesses had “obviously no rights.”Footnote 162
These arguments, however, had started to lose their persuasiveness.Footnote 163 The law, many now thought, was demeaning people based solely on their religious beliefs, placing honest men “on a level with a man convicted of forgery or any infamous crime.”Footnote 164 Depriving Universalists of otherwise available civil rights, Bernard Whitman wrote in 1830, constituted a form of “punishment” that was “wholly subversive of religious liberty.”Footnote 165 Indeed, rejected witnesses did not take kindly to their exclusions. Still bitter about being rejected in 1828 “for exercising a privilege guaranteed by the constitutions of our country,” Edward Giddins asked the New York prosecutor not to call upon him again. “To again suffer my feelings to be wantonly sported with, without a prospect of being able to benefit the public with my testimony,” Giddins wrote, “is more than I think that public ought to ask, and more than I can persuade myself to submit to.”Footnote 166
Reformers also increasingly realized that denying the testimony of certain groups could, in effect, place those groups beyond the “protection of the law,” leaving them without effective recourse to infringements of their private rights.Footnote 167 Even Cushing, who had defended the judges, noted that “[i]t would afford just ground of reproach against the law … if a numerous and respectable body of Christians were, by law, incompetent to give evidence in a court of justice.”Footnote 168 Notably, however, these claims about the “protection of the law” were tied to the inability of atheists to vindicate their other rights in court; they do not necessarily suggest an incipient principle against class-based legislation.Footnote 169
In addition to making constitutional arguments, many writers questioned the evidentiary value of excluding Universalists from testifying. The Universalist Magazine proclaimed that requiring belief in future rewards and punishments “involves the revolting notion that the more unmerciful and cruel we believe our Maker to be, the more likely we shall be to speak the truth in evidence.”Footnote 170 A letter to the American Mercury echoed this sentiment: “He, whose soul needs to be grasped with the terrors of hell, before he can tell the truth, is surely so abandoned, that hell itself could not prevent his perjury.”Footnote 171
The backlash to Wakefield v. Ross, Atwood v. Welton and the William Morgan affair in New York exposed increasing public disillusionment with the propriety and constitutionality of the common-law rule. The Atwood decision, one Connecticut legislator declared, “had produced astonishment and regret throughout the community.”Footnote 172 This comment is borne out by the rapid success of legislative reform efforts.Footnote 173 Spurred by public outcry, Rhode Island, Connecticut, and New York all quickly enacted legislation amending their competency requirements. In Rhode Island, a bill allowing both Universalists and atheists to testify passed hastily with only five dissenting votes.Footnote 174 This result is not surprising given the state's long-standing history of broad religious freedom without an established church and the lack of any noticeable public opposition to the legislative change.Footnote 175 A less drastic reform proved more controversial in Connecticut.
Debates in the Connecticut House of Representatives were well recorded and expose persistent divisions over the meaning and importance of oath requirements and their constitutionality. When considering a bill on religious freedom, Andrew T. Judson “offered an amendment declaratory of the spirit of the constitution, and providing that no person's religious belief shall affect his admissibility to an oath, or his credibility as a witness.”Footnote 176 The Atwood court's denial that religious rights were at stake was “delusive,” Judson asserted. “If you exclude one christian sect, and take from them their civil rights, as such, the other sects are of course preferred.”Footnote 177
Many Connecticut representatives defended the constitutionality and efficacy of the existing rules. Edmond Fanton stated that the common-law rule “gave no preference to one sect over another; it had reference solely to individual disabilities. The oath of a witness was founded on a belief in future rewards and punishments; and a contrary decision would destroy the obligation of an oath.”Footnote 178 Others warned that the bill would allow atheists to testify,Footnote 179 an argument that led at least two representatives to deny that any atheists lived in Connecticut.Footnote 180
A resolution was reached with an amendment to allow testimony from “every one, and give it that credibility which was due to it.”Footnote 181 By implication, the responsibility for determining a witness's credibility would be in the hands of the jury. As Samuel Church argued, “The object of law should be to elicit and elucidate truth, which cannot be done by rejecting testimony. Every one should be allowed to tell his story, and the Court and Jury permitted to inquire into his religious belief and place their own estimate upon his credibility.”Footnote 182 In response, future Connecticut Governor Chauncey Cleaveland protested that allowing credibility inquiries “would permit one party to array the prejudices of a Jury against a witness, by an inquiry into his religious opinions.”Footnote 183 The bill was stalled in the Senate,Footnote 184 but just a year later the General Assembly passed a law providing: “No person, who believes in the existence of a Supreme Being, shall, on account of his religious opinions, be adjudged an incompetent witness by any court of judicature in this State.”Footnote 185 The bill passed overwhelmingly, with some supporters of reform evidently voting “nay” because its protections did not extend to atheists.Footnote 186
These debates reflect unmistakable changes in popular opinion. In 1809, the restrictive decision of the Connecticut Supreme Court of Errors in Curtiss v. Strong had elicited little public comment. And following Jackson v. Gridley, a reform effort in the 1821 New York constitutional convention went nowhere.Footnote 187 By the end of that decade, however, the legislatures in both Connecticut and New York voted to eliminate Universalist incompetency.Footnote 188 Legislative records in Connecticut show that many opponents of reform in 1829 switched their votes just a year later.Footnote 189
Changing views about theology, religious freedom, and evidence law had thus collided, with lasting consequences for American law. In fact, Wakefield v. Ross and Atwood v. Welton proved to be the last formally reported decisions that excluded Universalist witnesses because of their religious beliefs.Footnote 190
Behind these developments were broader shifts in the relationship of government and religion, and particularly the formal disestablishment of state-sponsored religion across the United States. Examining that transition in any depth is beyond the scope of this article, but attitudes about how governments should promote or draw upon religion were surely influential in shaping the perspectives of the judges, legislators, and other public commentators. Although reformers did not highlight disestablishment as a freestanding reason to eliminate religion-based competency rules—that is, religion-based competency rules apparently did not “establish” a state religion—they often referred to notions of progress and generational exceptionalism that echoed antiestablishment principles. Chancellor DeSaussure's appeal to “the growing liberality of the age,” for instance, drew upon broader changes in the role of religion in American public life.Footnote 191
Partisan politics, too, influenced the reform efforts. The ruling in the William Morgan case, for example, took on a partisan valence because of the bitter, even violent, hostility between Masons and Anti-Masons. In this instance, the Anti-Masonic opponents of religion-based exclusions were allied with the Whigs.Footnote 192 In other states, however, the Jacksonian Democrats—the party that tended to have the support of Universalists—were more supportive of removing religion-based competency rules.Footnote 193 In Connecticut, for example, Democrats saw the fight against religion-based exclusions as a wedge political issue that played in their favor.Footnote 194 But although parties facilitated the ability of religious minorities to achieve legislative reforms in particular states, religion-based competency rules never became a national political issue.
Although historians often point to the interests of lawyers when accounting for various elements of early nineteenth-century legal reform,Footnote 195 these interests do not seem to have directly caused changes in religion-based competency rules. In court, lawyers argued in favor of whatever rule benefited their clients, and competency rules provided one of many avenues for demonstrating their adversarial skill.Footnote 196 In fact, the rise of lawyers may have increased the use of competency rules.Footnote 197
Out of court, too, attorney interests do not seem to have spurred reform efforts. Lawyers, it turns out, were active voices on both sides of the issue. In 1829, for example, a small minority of lawyers in the Connecticut House of Representatives dominated debates over evidentiary reform.Footnote 198 But these ten attorneys divided their support equally. The bill ended up passing 114 to 65, but the vote among lawyers was 11 in favor and 13 against. Information about partisan affiliation is unavailable, but county-level and town-level data suggest that being a lawyer did not have much, if any, effect on whether a Connecticut legislator favored evidence-law reform.Footnote 199
In an indirect way, however, partisan developments and the assertion of lawyers’ professional interests probably created a more hospitable political environment for changing the common law. As John Witt has noted, “reform in the law of evidence was linked to antebellum law reform generally, and codification in particular.”Footnote 200 Indeed, reformers took full advantage of contemporary suspicion of the common law. An editorial in New York, for example, bemoaned that courts felt “bound, according to ‘common law,’ (i. e. unjust decisions,) to reject [an atheist's] evidence.” The common-law rule, the editorial explained, pitted “justice … in these days of freedom” against “the fanaticism of our fathers, which ought to have died with them.”Footnote 201 This refrain about the “illiberality of the old English common law” was repeated by many American reformers in their efforts to change American law.Footnote 202
III. Atheism
Allowing Universalists to testify was a substantial shift, but oaths nonetheless remained explicitly religious. The exclusion of atheists, Tapping Reeve explained to his students in 1812, was “an unyielding rule of Law.”Footnote 203 An 1828 treatise on oath requirements similarly declared that the rule was “laid down without any qualification in all the books of evidence, and is admitted in all the adjudged cases, where any question is raised concerning the religious belief of a witness.”Footnote 204 In fact, that year Rhode Island became the first state to allow atheists to testify,Footnote 205 but it was the exception to an otherwise uniform rule.Footnote 206
Efforts to relax oath requirements, however, did not stop with Universalist testimony. Gradually, states loosened their competency rules even further. In doing so, the original definition of oath taking grew more distant.
Religious upheaval became rampant in the second quarter of the nineteenth century, fueled largely by theological challenges from Universalists, increasing democratic individualism, widespread immigration and migration, cheaper publishing, and cyclical depressions.Footnote 207 In turn, many Americans became openly skeptical of established church doctrine. According to Christopher Grasso: “In the eighteenth century, the rare religious skeptic tended to be a bewigged gentleman, often socially conservative, who was content to let the rabble have their superstition if it helped them behave. In the 1820s and 1830s, by contrast, religious skepticism was being fused to radical social reform movements, and it threatened to become prominent among the urban working class.”Footnote 208 Reverend Lyman Beecher declared in 1830 that religious skepticism “is now the epidemic of the world, as superstition was in the dark ages.”Footnote 209
Skeptics were particularly doubtful of eschatology and beliefs in the afterlife. Views about life after death were especially susceptible to doubt, they thought, because those beliefs were not founded on reason.Footnote 210 Like the development of Universalism decades earlier, increasing religious skepticism and disbelief put considerable strain on existing competency rules.
A. Public Debate and Legal Reform
The new wave of reform efforts in the 1830s relied on familiar arguments, such as constitutional principles of religious liberty. Accordingly, reformers initially sought to prohibit the introduction of any evidence of religious belief, even to attack an atheist witness's credibility. But whereas Universalists were organized, numerous, and often (at least by the 1820s) respected as fellow Christians within their communities, atheists lacked public sympathy.Footnote 211 “The Atheist is not only a fool, but a madman,” one New York legislator declared. “Would you permit such a creature as this to testify?”Footnote 212 Reformers therefore subtly changed their strategy. As efforts to allow atheist testimony faltered, they increasingly argued that juries were capable of evaluating the credibility of testimony in light of a witness's religious views, subtly shifting the debate to one about juries rather than about atheists.
Following their earlier successes, reformers continued to emphasize religious freedom. Millard Fillmore, then a young lawyer and staunch Anti-Masonic legislator from Buffalo, argued that excluding atheists was “inconsistent with the constitution of the State; and is at war with some of the most valued and most sacred principles, embodied in that charter of our liberties and civil rights.”Footnote 213 John Bolles, a Democratic lawyer from Boston, noted that “[t]he law affixes a penalty,—and a very severe and odious penalty,—upon certain opinions in regard to religious matters, and it must, therefore, by the advocates of toleration and religious liberty, be regarded with abhorrence.”Footnote 214 Religion-based exclusions, Bolles argued, were “a violation of the freedom of conscience.”Footnote 215 Reformers’ views of free exercise, these arguments illustrate, were becoming even more disjoined from natural-rights principles; atheists, after all, had no “religion” to practice.
Reformers also launched a frontal attack on the epistemological underpinnings of religion-based competency rules. According to New York lawyer Elisha P. Hurlbut, “the notion that religious faith is necessary in order to ensure a proper regard for truth … is unphilosophical and opposed to the experience of practical men. The religious sentiments are independent of that faculty of the mind which respects the truth.”Footnote 216 Moreover, atheists had similar incentives to tell the truth. “The dread of shame and infamy that necessarily attaches to the man who gives false testimony,” Fillmore wrote, “has the same influence upon the atheist as the believer.” Positive inducements to truth telling such as respect for justice and morality, he insisted, “all operate with the same force upon the atheist as upon any other individual.”Footnote 217 Other commentators went even further, noting that atheists and skeptics may actually prove themselves more trustworthy by openly declaring their dissenting views.Footnote 218
Reformers also highlighted the ineffectiveness of oaths to generate truth telling in court. “The fear of future punishment, has probably less weight than is generally imagined,” wrote John Appleton. “Those who would disregard the present motives to truth, would regard little a future punishment, which by its very remoteness, loses its effect.”Footnote 219 Bolles agreed: “[T]he mass of witnesses … care vastly more for what is present, tangible, real, than for all that is spiritual, invisible and remote. To refine with such persons upon the duties growing out of an oath, is to cast pearls before the swine.”Footnote 220 “All must concede,” argued Fillmore in a similar vein, “that the fear of future punishment with the great majority of witnesses, is not half as powerful to prevent perjury, as the fear of punishment inflicted by human laws.”Footnote 221 Although made by reformers, these comments illustrate a declining sense that oaths actually triggered a fear of divine punishment. Many people continued to believe in hell, but the primacy of eternal damnation in American religious thought had been eroding for years.Footnote 222
In response, arguments in favor of the restrictive common-law rule became increasingly tautological. Rather than defending the effectiveness of oaths, proponents of testimonial exclusion simply assumed that oaths were necessary and then exposed the incongruity of an atheist invoking divine punishment.Footnote 223 In response, one reformer observed that the absurdity of administering a divine sanction to an atheist was a product of the legal meaning of an oath rather than its practical import. “Were the witness to testify under the pains and penalties of perjury,” the reformer succinctly explained, “the absurdity above supposed, would at once vanish.”Footnote 224 Others suggested that, although administering an oath to atheists would be a “mere mockery,” atheists should nonetheless be able to give testimony under penalty of perjury, “the jury being left, of course, to judge how much it is worth.”Footnote 225
Reform efforts did not meet with immediate success, but over the course of the 1830s and 1840s several states adopted competency rules that allowed atheists to testify. Reformers’ rhetorical and legislative strategies, however, shifted over this period. Initially, they sought to preclude all evidence of religious belief. But in the second phase of legislative reform, reformers pursued more modest goals, seeking to liberalize competency rules while allowing juries to weigh the credibility of testimony based on a witness's religious views.Footnote 226
As described earlier, efforts to exclude all evidence of religious belief were common in the 1820s and early 1830s. Erastus Root led the unsuccessful charge in the 1821 New York ratifying convention, arguing against using religious views to attack a witness's credibility.Footnote 227 At the end of that decade, similar legislative proposals were offered—and defeated—in Connecticut and New York.Footnote 228 Reform efforts came closer to fruition in the 1830s, gaining the approval of a special legislative committee in Vermont and the House of Representatives in Massachusetts.Footnote 229 According to the Vermont committee, the state constitution barred efforts “to pry into the religious sentiments of citizens, and to deprive them of their right to testify, on account of their supposed heresies.”Footnote 230 In both states, however, the full legislatures declined to take action. A senate committee report in Massachusetts chastised the lower chamber's flirtations with allowing atheist testimony.Footnote 231 With the exception of a single legislative victory in Maine, reformers were unable to pass measures that barred credibility challenges based on religious beliefs, and even Maine allowed atheism-based challenges.Footnote 232
Reform efforts in the 1820s and early 1830s thus demonstrate a consistent desire to preclude competency and credibility challenges based on religious views. When these proposals were defeated, however, reformers narrowed their attacks, arguing that atheists should be allowed to testify, but that evidence of religious belief could be admitted to impeach their credibility. One of the principal arguments used in this new strategy was that jurors were capable lie detectors and could adequately weigh the effect of a witness's religious views. Courts had occasionally made this argument in the 1820s when they allowed credibility evidence against Universalist witnesses.Footnote 233 Nevertheless, references to juries were largely absent during the earlier legislative debates.
When efforts to exclude all evidence of belief faltered, reformers became effusive in praise of juries and their ability to uncover the truth. According to John Bolles:
Very few instances can occur, in which a witness is desirous of testifying falsely, without any discovery to the jury of that disposition. The very manner of the man becomes a language, more eloquent than words… . Rarely, very rarely, does it happen, that an important witness can lean to the one hand or the other, unobserved; and still more rarely can such a witness perjure himself, without detection by the cross-examining counsel… . That the proposed change [to allow atheists] would more fully meet the ends of justice in all cases, is clear; for jurors could vary the rule, according to the circumstances of the case, awarding to each witness, and each fact, its due value and importance.Footnote 234
“Whatever may be urged against any witness, as affecting character,” another jurist stated, “should be urged against his credit and not his competency… . In every case of conflicting testimony, it is a question of comparison, weighing the different characters and motives of witnesses, as to their effect on testimony, and after this comparison, believing or disbelieving their statements.”Footnote 235 A Wisconsin newspaper took the point a step further, arguing that “[t]he jury are the ones who, by right, should determine from [the witness's] mouth, or from his character proved by other witnesses, whether he is entitled to credit or not.”Footnote 236
By framing the issue in terms of juries and witness credibility, reformers advocated change without impugning the logic of the common-law competency rules. Prospective witnesses who did not believe in God or hell would receive only whatever credit their testimony was due—no more and no less—leaving juries free to discount or disregard atheist testimony. As Universalist minister Abel Thomas argued: “Hundreds of profane swearers, drunkards, gamblers, and other vile persons are annually permitted to testify in our courts … and though respectable citizens may be summoned to testify that they would not accredit such persons under oath, this does not affect their competency, but merely their credibility.”Footnote 237 Jurors were, after all, capable of deciding what was true. Using this argument, reformists transformed the debate into one about juror capacity rather than about the sense of solemn obligation among atheists. In light of the relative popularity of juries and atheists, this strategy made good political sense.
Debates at the 1846 constitutional convention in New York illustrate the effectiveness of this strategy. One of the Whig delegates, Moses Taggart, moved for a constitutional provision that “no man shall be deprived of any right or rendered incompetent to be a witness on account of his opinions or religious belief.”Footnote 238 According to Taggart, “[i]f there was anything in [a witness's religious beliefs] thus affecting his credibility let it go to the jury. Let it go to his credit and not to his competency.”Footnote 239 The discussion that followed showed the usual diversity of views on atheists’ competency to testify. One delegate analogized the practice of excluding atheists to the Southern practice of excluding blacks from testifying.Footnote 240 Another seemed to agree that competency was best left to the jury but opposed the proposal because “[b]y putting the question, we imply a doubt of the existence of the Deity.”Footnote 241 When the convention voted on Taggart's motion, the measure passed comfortably by a vote of 63 to 46.Footnote 242
After New York's Constitutional Convention voted to allow atheist testimony, the rule quickly spread west. With New York's Constitution often used as a model, similar provisions appeared in the constitutions of Wisconsin (1848),Footnote 243 California (1849),Footnote 244 Indiana (1851),Footnote 245 Ohio (1851),Footnote 246 Iowa (1857),Footnote 247 Minnesota (1857),Footnote 248 Oregon (1857),Footnote 249 and Kansas (1859).Footnote 250 Other states, along with the District of Columbia, passed legislation allowing both atheist testimony and credibility evidence respecting religious views.Footnote 251
Although religion-based competency rules were changing in the 1830s and 1840s, reform in some states lagged behind. At Pennsylvania's 1838 Constitutional Convention, delegates voted down a proposal to allow Universalist testimony.Footnote 252 Debates at the convention, however, were muddled. Some delegates remarked that the common law was already understood to admit Universalists as witnesses.Footnote 253 (Indeed, the Pennsylvania Supreme Court held Universalist testimony to be admissible just 3 years later.)Footnote 254 Others thought that broader protections should be pursued in the legislature rather than cluttering the constitution with minutiae.Footnote 255 In 1851, a similar constitutional proposal barely passed at a convention in Maryland.Footnote 256 The closeness of the vote seems odd given that Universalists (and even atheists) were allowed to testify in other states. Nevertheless, the lack of prior controversy may have left reformers unprepared to frame the debate in the most favorable light.Footnote 257 In neither state did they emphasize the role of juries in evaluating witness credibility.Footnote 258
B. Atheists in Court
In states without laws to permit atheist testimony, some parties nonetheless asserted in court that atheists should be allowed to testify. These legal claims, however, were far more problematic than arguments in favor of admitting Universalist witnesses. No ambiguities in the common law left the door cracked for atheist testimony. And constitutionally protected religious liberty usually extended only to people with theistic beliefs.
In 1836, for example, Judge Peter Thacher of the Boston municipal court—who had admitted Universalist testimony in 1829 partly on religious-freedom groundsFootnote 259—firmly denounced the idea that atheists deserved the same treatment: “That this fair world is without an intelligent creator … [is] absurd and absolutely incomprehensible…. While men yield to such delusions, the law refuses to them some of its privileges; and admonishes them, in that mild way, to correct their dangerous errors, before she will confide in their integrity or intelligence, to dispose of the rights of others in a court of justice.”Footnote 260
Twelve years later, the Massachusetts Supreme Judicial Court followed suit, holding that the constitutional provision that “no subject shall be hurt, molested, or restrained in his person, or estate … for his religious professions or sentiments” was inapplicable to atheists because “disbelief in the existence of any God, is not a religious, but an anti-religious, sentiment.”Footnote 261
In some states, however, judges loosened competency rules by generously stretching the meaning of the common law. In 1833, for example, the Supreme Court of Ohio allowed a witness to testify who “said he saw God in trees, bushes, herbage, and everything he saw” and that “he did anything wrong he was condemned in his conscience.”Footnote 262 The court ruled that the witness's testimony was admissible because he saw God “in all created nature.”Footnote 263 As a committee of the Ohio House of Representatives gingerly described a few years later, “The test here accepted by the court was certainly not a very rigid one.”Footnote 264
Other judges made it harder to prove that witnesses had disqualifying beliefs. In 1841, for example, the Maine Supreme Judicial Court—although openly skeptical of the common-law ruleFootnote 265—emphasized that “courts ought to require clear, open, deliberate, avowals of the disbelief on the part of the proposed witness.”Footnote 266 In his diary, New York lawyer Henry Vanderlyn expressed frustration when judges employed this strict approach:
The first witness called was Newell Evans… . We objected to his Competency because He was an Atheist, & proved that He had been an Atheist for the past 10 or 12 years by 5 Witnesses. To disprove this, He offered 3 witnesses who had heard him say since the filling of this indict[men]t that He believed in God. It appeared from these 3 witnesses that Evans had been cautioned to express himself in favor of a God to avoid the effect on his evidence of his disbelief. Notwithstanding the undoubted proof of his Atheism, the Court composed of Judge Monell, York, & Lamb – 3 locos Focos (Politics have entered largely into the prosecution, Evans being loco & Owen a conspicuous Whig of Bainbridge) decided He was admissible – a shameful decision.Footnote 267
Vanderlyn attributed the judges’ decision to politics—and of course he may have been correct—but similar episodes were fairly common.Footnote 268
In 1846, the General Court of Virginia issued the first reported opinion holding that any exclusions based on religious belief were unconstitutional infringements of religious liberty. In Perry v. Commonwealth,Footnote 269 a murder suspect had objected to one of the prosecution witnesses based on defect of religious principle.Footnote 270 On appeal, Judge John Scott wrote that the common-law doctrine had been framed “according to the spirit of the age in which the rule was introduced. England was a Christian country.”Footnote 271 Scott continued:
The progress of science and civilization, and the demands of commerce, have led to a relaxation of the rule [preventing non-Christians from testifying]; but it still retains a portion of its intolerant spirit; and the Courts of Justice in England, and in some of our sister States, have exercised an inquisitorial power over the religious belief of witnesses. In some of the States it has been relaxed or annulled by statutory and constitutional provisions. In Virginia, it was wholly abrogated by our Bill of Rights, and the act for security religious freedom, subsequently engrafted in the amended Constitution.Footnote 272
The state's 1830 constitution, Scott declared, put “all religions on a footing of perfect equality; protecting all; imposing neither burdens nor civil incapacities upon any.”Footnote 273 Barring the testimony of certain individuals because of their religious views, by contrast, stigmatized those persons as being “unworthy of belief” and placed their security and their property at risk because they might become victims of crime without legal recourse.Footnote 274 The declared incompetency of an entire group, in other words, might put that group beyond the protection of law.Footnote 275
IV. Conclusion
By the mid-nineteenth century, Americans had abandoned the religious exclusivity of swearing. Universalists and others who disavowed hell were allowed to testify in courts across the United States, and in most states juries were left to determine how witnesses’ religious views should affect their credibility. By 1860, even atheists were allowed to testify in at least fifteen of the thirty-four states, plus in the District of Columbia.Footnote 276 Belief in atheist incompetency lingered well into the twentieth century in some areas,Footnote 277 but the religious premises of oath taking had already substantially eroded.Footnote 278
Theological changes fueled these developments. For one, oaths provided weaker assurance of truthfulness once eternal damnation became less central in religious life. The advent of Universalism and growth of atheism also confronted courts and legislatures with a choice between relaxing oath requirements and excluding witnesses based on their religious views.
Given these religious developments, legal change became necessary. Excluding a witness here or there did not pose a serious threat to the rule of law, but strict enforcement of competency rules would have proved crippling once large segments of the population began disavowing God and hell. Indeed, President Washington sought to drive home a similar point in his Farewell Address, insisting that widespread religious belief was needed to ensure the proper functioning of the legal system. When those beliefs were no longer present, with religious dissent and disbelief coming forcefully into the open, the existing system clearly had to change.
How or when this reform would occur, however, was hardly obvious or inevitable. Social and legal pressures were building, but it remained up to individuals to harness those pressures. And the way that this story unfolded offers useful insights into early nineteenth-century legal culture. When pushing for a more liberal evidence regime, reformers deployed a range of new arguments. In particular, they simultaneously promoted and drew upon novel understandings of religious freedom, civil rights, and jury capacity—shifts that each had enduring significance for American legal history.
At the outset of the nineteenth century, judges were generally unconcerned with guaranteeing government neutrality toward religious beliefs: the core principle of modern free-exercise jurisprudence.Footnote 279 Instead, decisions emphasized that the natural right of conscience protected the autonomy to practice religion without governmental interference. That rule barred intrusive courtroom inquiries into the beliefs of prospective witnesses, but it did not forbid imposing a civil disability on individuals whose beliefs were publicly known.Footnote 280
As equality became “a staple in American political rhetoric,”Footnote 281 however, opponents of existing evidence rules increasingly insisted that governmental discrimination in civil privileges on the basis of religious beliefs was unconstitutional. At first, reform arguments remained tethered to an older view of free exercise, positing that religious practice would be burdened only when individuals were deprived of civil privileges on account of their faith. But as time passed, free-exercise arguments transitioned into freestanding attacks on any discrimination among religious groups, without regard to the effect of testimonial exclusion on particular adherents. By the outset of the Civil War, many jurists viewed witness incompetency as akin to punishment: a government-imposed stigma with tangible and symbolic consequences for the excluded groups.Footnote 282
In this way, religion-based competency reforms helped pave the way for removals of other competency rules.Footnote 283 Put simply, evidence rules came to have newfound social and political meaning. In earlier judicial discussions of competency rules, parties were the sole bearers of courtroom rights, and witnesses were merely cogs in the judicial process.Footnote 284 Judges had occasionally mentioned witness interests, or stated that being eligible to testify was “one of the distinguishing rights of a free citizen,” but even these sporadic comments did not describe a constitutional right that reigned supreme over existing evidentiary rules.Footnote 285 In contemporary parlance, the language of “civil rights” usually referred to all legal rights and privileges, and not merely those placed beyond legislative reach.Footnote 286
The notion that certain groups could be excluded from testifying, however, took on far greater social and legal importance in the second quarter of the nineteenth century. And this shift was soon manifest beyond religion-based competency debates. In 1840, for example, a brief political firestorm erupted when a court martial in Florida allowed several black Navy stewards to testify against a white lieutenant named George M. Hooe. “In all the States of our Union there is a marked distinction, in legal and political rights, between the free white person and the free colored person of African blood,” Hooe protested, “and in all they are of inferior rank and condition in society.” Even where free blacks were “viewed in the light of citizens,” he continued, “they are still a degraded class, by the many disabilities which the laws of those States have proscribed.”Footnote 287 Northerners sometimes harnessed the same rhetoric to support the opposite agenda. In the 1846 Constitutional Convention in New York, for example, a delegate argued that making all atheists incompetent to testify “was analagous [sic] to a custom in certain parts of this country, where testimony was excluded because the witness was a man of color or a slave.”Footnote 288 Similar comparisons appeared in the Congressional debates in the 1860s when Charles Sumner, among others, sought to eliminate race-based competency rules in federal courts.Footnote 289
The nineteenth-century breakdown in religion-based competency rules further illuminates a crucial but largely unexplored transition in the history of evidence law. Scholars have highlighted the early nineteenth-century writings of, among others, Jeremy Bentham and John Appleton, who advocated for wide-ranging evidentiary reform.Footnote 290 They have also given considerable attention to the flurry of statutes in the 1850s and 1860s allowing civil parties and criminal defendants to testify.Footnote 291 But scholars have yet to study how shifting ideas about jury capacity facilitated efforts to reform competency rules from the 1820s through the 1840s.
Untangling the causes of religion-based competency liberalization is tricky. Theological developments, combined with changing notions of religious liberty, seem to have triggered the first wave of reform, although many reformers were also concerned that excluding evidence would improperly skew the outcomes of cases. These legal developments did not depend on arguments about the jury being uniquely competent to evaluate evidence. In fact, legislative efforts in the 1820s and early 1830s often focused on excluding any evidence of witnesses’ religious views, even if directed at their credibility. Some legislators were openly skeptical that juries could fairly evaluate such evidence.Footnote 292
Reform efforts in the 1830s and 1840s, however, are more difficult to assess. Apparently learning from their earlier failures, reformers argued that rejecting atheists was counterproductive because juries were capable of evaluating witness veracity. Framing the debate in these terms was prudent; reformers were far more persuasive when emphasizing juror capacity rather than atheist truthfulness. At the same time, however, the success of the jury-oriented rhetoric may indicate broader public support for jury fact finding, setting the groundwork for the rhetorical strategy employed in the later movements in the 1850s and 1860s that successfully extended evidence liberalization to other excluded groups.Footnote 293 After all, Charles Sumner's Senate committee reported in 1864, “testimony is submitted to the scrutiny of a jury” and could “have no effect whatever except through the assent of their judgment.”Footnote 294
By the middle of the nineteenth century, countless Americans were contesting the religious principles that President Washington had declared essential to a well-ordered legal system. Yet the United States had avoided the godless pandemonium of revolutionary France that Washington so feared. Instead, judges and politicians accounted for theological changes by redrawing evidentiary rules. And in doing so, they harnessed novel understandings of free exercise, civil rights, and the role of juries that continue to shape American law.
